Citation Nr: 1312741 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-40 707A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a temporary total rating beyond May 31, 2010 under 38 C.F.R. § 4.30 for convalescence following left knee surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to July 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a video-conference hearing before the Board in January 2013. This transcript has been associated with the file. The Veteran originally raised the issues of entitlement to a temporary total evaluation following his October 2006 left knee surgery, and entitlement to increased evaluations for instability and arthritis of his left knee. These claims were denied in an April 2007 rating decision. A statement of the case on these claims was issued in February 2008 and the Veteran filed a VA Form 9 in March 2008. However, in a June 2009 statement, the Veteran withdrew his appeals on these issues, indicating that a May 2009 rating decision had satisfied the appeals. As such, the only issue before the Board is listed above. FINDINGS OF FACT 1. The Veteran underwent left knee surgery on March 4, 2010, and consequently required a period of convalescence afterwards. 2. He resultantly was awarded a temporary total (100 percent) rating for this left knee disability effective from March 4, 2010 to May 31, 2010 whereupon, as of June 1, 2010, a 20 percent rating for this disability was awarded. 3. It has been shown the Veteran needed additional convalescence from June 1, 2010 to August 22, 2010. CONCLUSION OF LAW The criteria are met for extension of the temporary 100 percent convalescent rating from June 1, 2010 to August 22, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Since the Board is granting entitlement to a temporary total rating from June 1, 2010 to August 22, 2010 under 38 C.F.R. § 4.30, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran has undergone multiple surgeries for his left knee disability. At issue in this decision is the temporary total rating following his March 4, 2010 surgery. He was initially awarded a 100 percent rating from March 4, 2010 to May 31, 2010, after which a 20 percent evaluation was awarded. See April 2010 rating decision. Following his March 4, 2010 left knee surgery, the Veteran underwent surgery again on his left knee on August 23, 2010. A September 2010 rating decision assigned 100 percent rating from August 23, 2010 to October 1, 2011, under Diagnostic Code 5055, for total knee replacement. Following this rating, the RO found clear and unmistakable error (CUE) existed in the September 2010 rating decision as the Veteran did not undergo total knee replacement on August 23, 2010. Rather, the Veteran had hemi-arthroplasty of the knee on August 23, 2010. Therefore, the RO assigned a temporary total rating under 38 C.F.R. § 4.30 from August 23, 2010 to February 28, 2011. See December 2011 rating decision. As of March 1, 2011, the Veteran was awarded a 40 percent evaluation. The Veteran has not disagreed with the finding of CUE in the December 2011 rating decision and the issue of entitlement to a temporary total rating beyond March 1, 2011 is not on appeal. Accordingly, the Board will focus on the time period between June 1, 2010 to August 22, 2010 when the Veteran was awarded a 20 percent disability rating. As discussed below, the Board finds that a temporary total disability rating is warranted for this period. A temporary total rating may be assigned under either 38 C.F.R. § 4.29 or § 4.30. This rating will be assigned under 38 C.F.R. § 4.29 when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period exceeding 21 days or hospital observation at VA expense for a service-connected disability for a period exceeding 21 days. Whereas a total rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. This temporary total rating will continue for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release, and an extension of 1, 2, or 3 months beyond the initial 3 months may be made. 38 C.F.R. § 4.30(b). As discussed, the Veteran underwent left knee surgery on March 4, 2010. In April 2010, the Veteran reported that his left knee pain felt worse than prior to his surgery. In a May 2010 VA treatment record, the Veteran again reported that his left knee pain was worse than prior to his surgery. In a June 2010 VA treatment record, the Veteran reported that his knee pain was worse and that he needed crutches again. He also reported experiencing cracking, grinding, and popping in the left knee. In a July 2010 VA examination report, the Veteran reported needing crutches if he had to walk more than 1-2 blocks. He was still wearing a brace from the March 2010 surgery and he reported that his pain medication was only a little effective in that he continued to experience constant pain. He also reported that he had to stop working because his only work experience was that of a heavy laborer. The examiner noted that the Veteran had been made unemployable by his left knee disability. In a July 2010 private treatment record, the Veteran reported joint line discomfort and there was restricted range of motion due to pain. In an August 2010 private treatment record, the Veteran continued to report pain over the medial aspect of his knee. In August 2010, he was scheduled for additional left knee surgery as his condition had continued to deteriorate. In an October 2010 opinion, a VA physician opined that the March 2010 surgery did not help relieve the Veteran's left knee pain. He also opined that, with a reasonable degree of medical certainty, the temporary total disability rating should be extended from March 4, 2010 to March 1, 2011 to allow for optimal recovery. As has been noted, the Veteran is already in receipt of a 100 percent temporary total evaluation from August 23, 2010 to March 1, 2011. At his January 2013 Board hearing, the Veteran testified that 30 days after his surgery he was informed he would have a total or partial knee replacement in August 2010. He also testified that following his March 2010 surgery, he experienced his left knee buckling, giving out, and locking up. He was given a knee immobilizer to help stabilize his knee at various degrees and he testified that he was still using the immobilizer currently. He also testified that he used a cane following the March 2010 surgery because the crutches hurt his arms too much. The Board will resolve reasonable doubt in favor of the Veteran. Taking into account the October 2010 VA physician's opinion and the Veteran's January 2013 testimony, the Board finds that a temporary total evaluation is warranted from June 1, 2010 to August 22, 2010, as the evidence shows the Veteran required multiple months of convalescence between his March 2010 and August 2010 surgeries. 38 C.F.R. § 4.30. ORDER Entitlement to a temporary total rating from June 1, 2010 to August 22, 2010, under 38 C.F.R. § 4.30 for convalescence following left knee surgery is granted, subject to the applicable regulatory provisions governing payment of monetary awards. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs